On May 28, 2010, the U.S. Court of Appeals for the 5th Circuit dismissed the
appeal in Comer v. Murphy Oil, which resulted in the reinstatement of the
trial court’s dismissal of all claims against the energy company defendants. The
court dismissed the appeal for a very odd reason – the court did not have a
quorum of nine active members to hear the case, because half of the members of
the court had recused themselves.
While a decision from the 5th Circuit affirming the district court on the
merits would have been preferable, and while lawsuits seeking damages arising
from climate change continue to be a threat to oil, coal, chemical and power
companies, this is still a welcome victory for the defendants.
The trial court initially dismissed this lawsuit by Mississippi property
owners against numerous oil, coal and chemical companies who alleged the
defendants’ activities contributed to climate change and magnified the effects
of Hurricane Katrina. The trial court concluded that the plaintiffs did not have
standing and that the political question doctrine barred their claims.
On appeal, a panel of the 5th Circuit reversed on Oct. 16, 2009, holding that
the plaintiffs did have standing to pursue their claims and that the political
question doctrine did not apply. The full 5th Circuit granted the defendants’
petition for rehearing en banc on Feb. 26, 2010, by a vote of 6-3.
In its latest ruling, the court found that because it no longer had a quorum
of nine active members to hear the case, it would not hear the appeal on the
merits. This was not unexpected, as the court had announced almost a month
earlier that it no longer had a quorum to rule on the merits of the case. What
was unexpected was what the court decided to do as a result of this finding.
By a 5-3 vote, the court refused to reinstate the panel decision that had
been automatically vacated by local rule due to the grant of rehearing en banc.
The court reasoned that “[t]here is no rule that gives this court authority to
reinstate the panel opinion, which has been vacated.” Accordingly, the court
concluded that “[b]ecause neither this en banc court, nor the panel, can conduct
further judicial business in this appeal, the Clerk is directed to dismiss the
The court rejected five other less-drastic options suggested by the parties:
(1) asking the Chief Justice to appoint a judge from another circuit to sit by
designation; (2) declaring that a quorum existed by defining quorum as
constituting a majority of non-recused judges of the court; (3) adopting the
Rule of Necessity which allows disqualified judges to sit under certain
circumstances; (4) “dis-enbancing” the case and ordering the panel opinion
reinstated; and (5) holding the case in abeyance until the composition of the
Judge Eugene Davis, joined by Carl Stewart, dissented. He declared that
“[t]he dismissal of this appeal based on a local rule has the effect of
depriving appellants of their right to an appeal and allows the local rule to
trump federal statutes.” He also said that he found “an inexplicable disconnect
between the notion that a majority of the eight unrecused judges has no
authority to do anything except literally apply [the local rule requiring that
the panel decision be vacated] strictly as written; yet they do have the
authority to dismiss the appeal.”
Judge Dennis also filed a blistering, 16-page dissent in which he lamented
that “the particular timing of one single judge’s recusal [was] being allowed to
conclusively determine the outcome of this case.” Indeed, no reason or
explanation was given as to why Judge Jennifer Elrod saw fit to recuse herself
after voting in favor of rehearing the case en banc. He attacked the majority
decision as “shockingly unwarranted,” “drastic,” “precipitous,” and “manifestly
contrary to law and Supreme Court precedents.” He argued that the court should
have found that it did indeed have a quorum, and also argued that even if it did
not, it had an absolute duty to hear and decide an appeal of right by applying
the Rule of Necessity, appointing a judge from another circuit, reinstituting
the panel decision, or holding the case in abeyance until the vacancy on the
court is filled.
Significance of the Decision
There are five significant implications as a result of this decision.
1. Blunt Momentum of Climate Change Litigation
The largest and arguably most visible of the climate change lawsuits is once
again dead, and now can only be revived by the unlikely scenario of the U.S.
Supreme Court granting certiorari and reversing. This is obviously a welcome
result for the Comer defendants in the short term, especially since it is
as if the 5th Circuit panel decision never occurred. At the very least, this
decision will blunt some of the momentum the plaintiffs’ bar has achieved in
climate change litigation over the last nine months.
2. Winning the Battle but Losing the War?
Though a win is a win, the result may ultimately prove unsatisfying and even
disappointing for the defendants. Many observers predicted that the 5th Circuit
en banc would affirm the district court, setting up a clear split with the 2nd
Circuit decision in Connecticut v. American Electric Power (AEP) and
making it likely that the U.S. Supreme Court would accept certiorari of
Comer, AEP, or both. Simply put, the defendants and the energy
industry in general hoped that Comer would be the battle that would win
the climate change litigation war once and for all. That is unlikely to happen
The U.S. Supreme Court is less likely to accept certiorari of either
Comer or AEP without a true circuit split. And the litigation war
now shifts from the relatively defendant-friendly terrain of the 5th Circuit to
the Kivalina appeal pending in the much more plaintiff-friendly 9th
Circuit. Rather than a resounding victory for defendants, Comer may be
viewed as little more than a victory based on a technicality with little
precedential value, especially since there was no written decision by the
district court. Depending on what happens in the future, Comer might be
looked back on as a classic case of winning the battle but losing the war.
3. Less Likely That U.S. Supreme Court Will Review
Even if the U.S. Supreme Court was inclined to view Comer as being a
split with the AEP decision, the procedural posture of Comer makes
it less likely for the court to grant certiorari. Without any ruling on
the merits at all by the 5th Circuit, the U.S. Supreme Court would have to agree
to review only the district court decision, akin almost to a direct review. This
would be highly unusual and might be seen as “beneath” the court to delve into
such matters without a full appellate record. In addition, the court is unlikely
to agree to review the 5th Circuit’s decision because it was based on a local
rule, and the U.S. Supreme Court will almost certainly defer to the 5th
Circuit’s interpretation of its own rule.
4. Recusal Issues for the U.S. Supreme Court?
As discussed in a previous alert, the mass recusal of members of the 5th
Circuit in Comer begs the question as to whether such recusals would be
an issue for the U.S. Supreme Court as well. Initial analysis suggests that it
would. Justice Samuel Alito has recused himself on several occasions from cases
involving ExxonMobil due to his ownership of its stock. See, e.g., Exxon
Shipping v. Baker; American Isuzu v. Ntsebeza. Likewise, Justice Steven
Breyer has recused himself from cases involving BP due to his ownership of its
stock. See, e.g., New Jersey v. Delaware; Morgan Stanley Capital Group v.
Public Utility Dist. 1. Both ExxonMobil and BP are defendants in the Comer suit.
Similarly, Justice Sonia Sotomayor would also likely recuse herself due to
her participation in the Connecticut v. American Electric Power case when
she was on the 2nd Circuit. This is true even as to Comer since the
issues presented in Comer and American Electric Power are so
similar. Therefore, it is likely that Justice Alito, Justice Breyer and Justice
Sotomayor would recuse themselves from the decision of whether to grant certiorari as well as any merits decision. This would leave the Supreme
Court with the minimum quorum of six. If one more justice were forced to recuse,
then the U.S. Supreme Court would be unable to decide the merits even if it
wanted to. This is not unheard of in the U.S. Supreme Court, and recently
occurred in the case of American Isuzu Motors v. Ntsebeza in 2008 when
four justices recused themselves.
In fact, if Justice Kagan is confirmed, the chances that the U.S. Supreme
Court will not have a quorum is as high as 50/50. The last time a sitting
Solicitor General became a U.S. Supreme Court justice was Thurgood Marshall, and
he recused himself from approximately 57% of the court’s cases in his first term
due to his duties as Solicitor General (recusal in 98 of 171 cases). Justice
Kagan could be expected to recuse herself to a similar degree. This same point
likely applies to any appeal of Kivalina from the 9th Circuit as well.
However, it is worth noting that because the recusals disproportionately affect
the more liberal wing of the U.S. Supreme Court, if certiorari is granted
and the court is able to move forward, any resulting decision would almost
certainly be in favor of the defendants.
Likewise, such recusals may also affect the decision to grant certiorari.
Four members of the court usually must vote to consider the case in order for certiorari to be granted (known as the rule of four). Even if there is a
bare-minimum quorum of six, all but two must agree to review Comer.
Though Roberts, Scalia and Thomas would likely vote to grant certiorari
for Comer or AEP, the likely recusal of Alito means at least one
more justice would have to sign on. Ginsberg would be unlikely to do so as would
Kagan (assuming she did not recuse). That would leave Justice Kennedy, who is
unpredictable when ruling on environmental issues (see Massachusetts
v. EPA). It is far from clear that Kennedy would vote to accept certiorari even under normal circumstances, let alone the unusual
circumstances that now exist in Comer.
5. Renewed Dialogue on Recusal Policies
One can expect a renewed dialogue on recusal policies for appellate courts.
The 5th Circuit has been thoroughly embarrassed by this saga as evidenced by
releasing its decision on the Friday before Memorial Day in an attempt to draw
as little attention to it as possible. Indeed, it was clear the court did not
even know how to handle the situation, as it asked for advice from the parties.
Furthermore, a recent Wall Street Journal editorial complained about the
possibility of parties gaming the judicial system by forcing mass recusals of
judges. Defendants in mass litigation should be cognizant of the possibility of
recusal of judges; should closely review judges’ financial disclosures; and
should be aware of a court’s recusal policy when analyzing what strategy to
take. Such policies vary widely from jurisdiction to jurisdiction.
Comer highlights the unpredictability of such litigation when numerous
judges are forced to recuse themselves, making the outcome that much harder to